Global Intifada

For the purposes of this discussion, there are three types of punishment in relation to criminal acts:
1. Qisas and diyat (crimes that require retaliation and blood money)
2. Hudud (crimes with a fixed punishment)
3. Ta’zirat (crimes where a punishment is determined by the discretion of the judge

Qisas and Diyat crimes
The criminal, if proven guilty, is punished by retaliation of the victim or his family or is required to pay what is known as blood-money. This is because the criminal is violating the rights of the individuals and, as such, they are the ones who seek compensation and justice from him.

This punishment is for the following crimes:
1. Intentional Murder
2. Quasi-intentional Murder
3. Murder as a result of a Mistake
4. Pain and suffering

The prohibited nature of murder is established from the Qur’an and Hadeeth:
“Whoever kills a person for other than manslaughter or corruption in the land, it shall be as if he had killed all mankind, and who ever saves the life of one person, it shall be as if he had saved the life of all mankind. (5:32)

“And slay not the life which Allah has made sacred, save in the course of justice. This He has commanded you, in order that you may discern.” (6:151)

“Oh you who believe! The law of retaliation if prescribed for you in cases of murder. The free for free, the slave for slave, the woman for woman. But if any reasonable demand and compensate him with handsome gratitude. This is a concession and mercy from your Lord. After this whoever exceeds the limits shall be in grave penalty.” (2:178)

Anas Ibn Malik (ra) said “I have seen the Prophet (saw) that whenever a case punishable with retaliation was referred to him, he directed for pardoning in that”

Hudud
The criminal, if proven guilty, is punished according to the requirements established in the Qur’an and Sunnah. Since committing a crime whose punishment is hudud is considered a violation of the right of God, neither the victim nor a judge may alter the punishment.

This punishment cannot be increased, decreased, nor altered even by the ruler of an Islamic state.

This punishment is for the following crimes:
1. Adultery
2. False Accusation of Adultery
3. Theft
4. Hirabah - Highway Robbery
5. Consuming Wine
6. Rebellion
7. Apostasy

“The woman and the man guilty of adultery or fornication, flog each of them with one hundred stripes. Let not compassion move you in their case, in a matter prescribed by God, if you believe in God and the Last Day: and let a party of the believers withness their punishment.” (24:2)

Although the verse indicates both adultery and fornication, the Sunnah of the Prophet (saw) has applied this verse only to unmarried indiivudals and the punishment for them has beeen determined to be 100 stripes according to Imam Abu Hanifa. According to the other mujtahid imams, the punishment is 100 stripes and also a year in banishment, although Imam Malik exempts women from banishment.

The Prophet (saw) said “The killing of a Muslim not permissible except in three cases: (i) when he kills another person, (ii) when he commits zina after being married and (iii) when he becomes apostate.”

However, in terms of the execution of the punishment of whipping, it is important to note that Umar (ra) would tell the executioners not to raise their hands above their head so that the whiteness of their armpits would not appear. In other words, the whipping was done in a more restrained and less painful fashion than we might imagine. He also stated to executioners, when whipping women, not to lacerate their skin. In addition to this, Ali (ra) instructed the executioners of the punishment not to whim in the face.

The ‘Ulema have determined that main purpose of the whipping is humiliation of the convict and reasonable pain to his bodyand not necessarily to cause him or her terrible amounts of pain.

With regards to Zina, it requires four witnesses and they are required to be qualifiable witnesses (ie mature, not insane, etc) and must have actually witnessed penetration into the sexual organs not merely foreplay to constitute as a valid testimony.

Allah (swt) says in the Qur’an “And those who launch a charge against chaste women and produce not four witnesses (to support their allegation), flog them with eighty stripes and reject their evidences even after.” (24:2)

Ta’zirat
The criminal, if proven guilty, is punished at the discretion of a judge since the Qur’an and Sunnah do not fix a punishment. Every crime whose punishment is not qisas, diyat, or hudud is punished by ta’zirat

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